dissenting. In my opinion, the Arkansas General Assembly has, through Ark. Stat. Ann. § 67-205 (Repl. 1980), delegated to the State Bank Commissioner and the State Banking Board the authority to approve or disapprove the creation and transfer of banks and their branches. The statute reads in part:
All applications for charters for the new banks and for approval of amendments of the charters of existing banks shall, immediately upon their filing with the State Bank Commissioner, be submitted to the board for investigation and for approval or disapproval by it. The board shall, immediately upon the submission to it of each application for a charter or each certificate of amendment of a charter make such investigation as shall enable it to determine the fitness of the applicants, the need, from the public standpoint, for the proposed institution or the change to be effected by the proposed charter amendment and all other questions, whether or not of like kind with those herein referred to, bearing directly or indirectly upon the need or desirability from the public standpoint of the proposed institution or charter amendment, and shall then without delay approve or disapprove the application ... No bank or trust company shall change or remove the location of its banking house, office or place of business from one [1] town or city to another save by charter amendment first approved by the Bank Commissioner and the State Banking Board in the manner herein required in respect of charter amendments generally.
Only the State Banking Board has the authority to determine whether the public needs are met by the establishment of a bank or branch bank in a particular community. In the present case the investigation by the State Banking Board and the commissioner’s staff found that it would be beneficial to the local economy to have appellants establish a bank in Huntsville. It was also found that it would not have an adverse impact on the competing bank. The investigation established clearly that the existing bank does not provide many of the banking services which appellants proposed to bring to Huntsville. Therefore, if the existing bank refuses to bring full and adequate services to the people it serves, it is only logical that a competing bank should be allowed to provide these services. The majority opinion agreed that the State Banking Board might well approve the establishment of a new bank charter in Huntsville. According to the above-quoted statute, the board and commissioner also have the exclusive right to approve or disapprove of a transfer of an existing bank’s office to another town.
In my opinion, paragraph 7 (b) of the purchase agreement is unenforceable because it is an attempt to evade provisions of the law as established by the people of the state of Arkansas through the General Assembly in establishing the State Banking Board and the office of Bank Commissioner. It should be noted that the Madison Bank did not include any of its “good will” with the sale of its stock in the Kingston Bank. It seems that the provisions of paragraph 7 (b) were included specifically to stifle competition and promote an existing monopoly. In the case of Shapard v. Lesser, 127 Ark. 590, 193 S.W. 262 (1917), we held that an agreement to prevent attempts to buy a competitive gin and to stay out of the gin and cotton seed business in competition with an existing corporation was an unenforceable contract. It seems to me that in the great majority of cases where a restraint of personal services or trade has been enforced the grantor has conveyed at least a portion of its good will and services to the purchaser. No such items were purchased by the appellants and none were granted by the appellee bank.
There is no doubt in my mind that the State Banking Board is in a much better position as an administrative agency to determine and resolve the issues of this case than is a chancery court or the supreme court. In the case of Gordon v. Cummings, 262 Ark. 737, 561 S.W.2d 285 (1978), this court recognized that administrative agencies are in a better position to resolve such issues than are the courts. Such agencies are by nature specialists and they have greater experience and insight and are more able to determine and analyze the legal principles and facts involved than we are. The courts should not substitute their opinion for that of state agencies unless there has been an obvious failure to comply with the legal requirements in making such decisions.
For the foregoing reasons, I respectfully dissent.